North Carolina Case Reveals That Inquiry Into Acts of Dishonesty Can Only Occur During Cross-Examination

Similar to its federal counterpart, North Carolina Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross‑examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross‑examined has testified.

As the Rule makes clear, such inquiry can only occur during cross-examination, which was the problem for the defendant in Matter of D.R.J., 2024 WL 3864002 (N.C. App. 2024).

In D.R.J., 

Juvenile-Appellant “David” appeal[ed] from the district court’s juvenile adjudication and disposition orders adjudicating him delinquent on petitions for misdemeanor sexual battery, felony second-degree forcible rape, and felony incest, and placing him on probation and ordering his cooperation with placement into a sex-offender-specific treatment program.

During the State’s case, David’s sister Claire testified against him. Subsequently, after the State rested, David’s counsel called his grandparents and started asking about specific instances of Claire’s dishonesty. The judge, however, sustained the State’s objections to this line of inquiry.

David later appealed, but the Court of Appeals of North Carolina rejected that appeal. The court focused upon the lack of an offer of proof regarding of how the grandparents would have testified in the absence of objections. But it’s also clear that the line of inquiry was improper because it was during direct, not cross.

-CM